Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedMiscellaneous Civil Application (arising from Nakuru CMCC No. 413 of 2014; related appeal Nakuru HCCA No. 136 of 2017)· [2019] KEELC 2417 (KLR)

Jadgit Singh Saund v Jesvir Sing Rehal & another [2019] KEELC 2417 (KLR)

Environment and Land Court (transferred from the High Court)
17 July 2019
1,143 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Nakuru court refused to pause execution of a rent decree because the appellant showed no real loss — merely losing a case isn't enough.

What this practically means

#

Executive summary

#
The applicant, Jadgit Singh Saund, moved the court by Notice of Motion seeking stay of execution of the judgment and order of 22nd September 2017 made by Hon. J. Omido (Principal Magistrate) in Nakuru CMCC No. 413 of 2014, Jadgit Singh Saund v Jesvir Sing Rehal & another, pending his appeal in Nakuru HCCA No. 136 of 2017. The decree required the applicant to pay the 1st respondent rent of KShs 10,000 per month from January 2012. The application, initially lodged in the High Court as a miscellaneous civil appeal, was transferred to this court for jurisdictional reasons by Mulwa J. The court applied Order 42 rule 6(1) and (2) of the Civil Procedure Rules, 2010, and the test in Kenya Shell Limited v Benjamin Karuga Kibiru, that substantial loss is the cornerstone of an application for stay pending appeal. Although the court found the application was brought without unreasonable delay, it held that execution of a lawful decree does not per se amount to substantial loss; the applicant had neither paid nor deposited the decretal rent nor demonstrated inability to pay, and had taken no step in the appeal beyond filing it, including failing to file a supplementary affidavit on the record of appeal as directed. The Notice of Motion dated 31st May 2018 was dismissed with costs to the 1st respondent, and no costs were awarded to the 2nd respondent, who neither responded to nor participated in the hearing. The court noted the appeal remains pending and that parties may need to move for its transfer owing to similar jurisdictional concerns.

Key legal issues

#
01

Substantial loss as the cornerstone of stay pending appeal

Holding

The applicant failed to prove substantial loss; mere execution of a lawful decree does not amount to substantial loss

Reasoning

The applicant contended that execution would lead to eviction and disposal of the suit property. The court held that successful litigants are naturally entitled to enforce their judgments. The decree required payment of rent of KShs 10,000 per month from January 2012; the applicant neither paid nor deposited the rent nor showed inability to pay, so the essential element of substantial loss was not established.

p. 2
02

Unreasonable delay

Holding

The application was made without unreasonable delay given prior stay proceedings in the subordinate court

Reasoning

The applicant had earlier sought stay from the subordinate court, whose application was dismissed on 25th May 2018; the subordinate court had also granted 30 days' stay. The court was satisfied an appeal existed and that the present application under Order 42 rule 6 was brought without unreasonable delay. However, the applicant took no other step in the appeal and failed to file a supplementary affidavit on the record of appeal.

p. 2

Legal principles established

#
  • Execution of a lawful decree does not, of itself, constitute substantial loss for purposes of an application for stay pending appeal
  • An applicant for stay pending appeal must show substantial loss, that the application was made without unreasonable delay, and furnish security

Court orders

#
  1. 1.Notice of Motion dated 31st May 2017 (31st May 2018 as stated in the judgment) dismissed with costs to the 1st respondent
  2. 2.No costs awarded to the 2nd respondent as he neither responded to nor participated in the hearing
On appeal from
Chief Magistrate's Court, Nakuru
Nakuru CMCC No. 413 of 2014
Jurisdiction invoked
Order 42 rule 6(1) and (2) of the Civil Procedure Rules, 2010 (stay of execution pending appeal)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Jadgit Singh Saund v Jesvir Sing Rehal & another [2019] KEELC 2417 (KLR)", Case Analysis (2019). Miscellaneous Civil Application (arising from Nakuru CMCC No. 413 of 2014; related appeal Nakuru HCCA No. 136 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2417/eng@2019-07-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.